Even if council didn't have the right to order Ford to repay lobbyists, that is not "a valid ground for appeal," Ruby argues.

Mayor Rob Ford faces journalists in Toronto on Dec. 5 after winning a freeze of the ruling that would have forced him from office immediately. His appeal will be heard by a three-judge Divisional Court panel on Jan. 7.

By:Daniel DaleUrban Affairs Reporter, Published on Mon Dec 24 2012

Mayor Rob Ford must be kicked out of office even if council never had the right to make him reimburse lobbyists, the opposing lawyer says in a new court filing.

The law prohibits members of council from speaking or voting on any issue in which they have a financial interest. Ford spoke and voted during a February council debate about whether he should be excused from a 2010 council order to repay $3,150 to lobbyists whose donations to his football foundation he improperly accepted.

In a court filing two weeks ago, his lawyer, Alan Lenczner, argued that his February speech and vote were null and void — since the City of Toronto Act, a provincial law governing the city’s affairs, doesn’t give council the power to force a member of council to pay back money.

The opposing lawyer, Clayton Ruby, argues in the new filing that council actually does have that authority. But even if it doesn’t, Ruby argues, that “cannot be a valid ground for appeal”: the February debate was within council’s authority even if the 2010 order wasn’t — and Ford never challenged the order, at council or in court, until this lawsuit two years later.

“The accusation of illegal behaviour is today made, years later, in a separate proceeding,” Ruby and his associates write.

The appeal will be heard by a three-judge Divisional Court panel on Jan. 7. Both sides expect a decision weeks later. If Ford’s ouster is upheld, council will decide within weeks whether to appoint a new mayor or call a byelection.

To win on appeal, Lenczner must convince the panel that Hackland made an error of law. Lenczner presented three additional arguments; Ruby addressed them at length:

1) Lenczner argued that the conflict of interest law doesn’t apply at all to issues, like this one, related to the councillor code of conduct. Ruby says there is “no justification” for exempting code of conduct issues. The conflict of interest law, he notes, says plainly that members of council can’t speak or vote on “any matter” in which they have an interest.

2) The law allows members of council to speak and vote on issues in which they have an interest if that interest is “so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member.”

Lenczner contended that Hackland made an error in pointing to Ford’s council speech — in which he emphatically argued that there was “no sense” in forcing him to repay the $3,150 — as evidence that the money was significant to him. What actually matters, Lenczner argued, is how a reasonable person would view that amount of money, not what Ford himself was thinking at the time.

Ruby counters: “It was unnecessary for the court to determine whether the sum of $3,150 could reasonably be viewed as likely to influence (Ford) because (Ford) himself conceded that it did.” Regardless, he argues, $3,150 cannot possibly be viewed as insignificant.

“It takes a long time and a good deal of hard work for an ordinary Canadian to save up $3,150. Indeed, the average weekly wage for an Ontarian is $896.61. The average property tax for a $400,000 house in Toronto is $2,400,” he writes.

3) The law allows the courts to let violators off the hook if they have made an “error in judgment.” Lenczner argued that Hackland was wrong to reject Ford’s error in judgment defence: Ford, he claimed, had a reasonable, though possibly mistaken, belief that he was allowed to participate in the debate.

Ruby noted that Ford has acknowledged he never read the conflict of interest law, never attended a councillor orientation session, had no policy to identify potential conflicts, and ignored a warning about his conflict on this matter.

“At best, this is wilful blindness; at worst, it is outright intransigence. Either way, it is not an error in judgment,” Ruby writes.

Lenczner also argued that the conflict of interest law is unfair in denying members of council the right speak in their own defence during debates about potential penalties against them. He pointed to experts, such as former Toronto integrity commissioner David Mullan, who have suggested that the law be amended.

Ruby argued that this point is irrelevant to the appeal. “Unless (Ford) is suggesting that this court engage in law reform and rewrite the MCIA, (Ford’s) arguments belong in Queen‘s Park — not in this honourable court,” he writes.

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